Brae Asset Fund v. Walsh ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT




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        No. 96-1049



                                BRAE ASSET FUND, L.P.,



                                Plaintiff, Appellant,



                                          v.



                                WELD MANAGEMENT, INC.,



                                 Defendant, Appellee.




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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Richard G. Stearns, U.S. District Judge]
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                                        Before



                               Torruella, Chief Judge,
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                            Cyr and Lynch, Circuit Judges.
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             John  A. Doonan,  with whom  Doonan &  Graves, Debra  Csikos, and
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        Acquisition Management, Inc. were on brief for appellant.
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             Joseph K. Mackey, with whom Kearney & Gleason, P.C.  was on brief
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        for appellee.






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                                   December 3, 1996


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                    Per  Curiam.   Following  oral argument  and a  careful
Per  Curiam.
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          review  of the briefs and the entire  record on appeal, we affirm



          the summary  judgment entered in  favor of Weld  Management, Inc.



          ("Weld"),  essentially for  the  reasons stated  by the  district



          court.         Largely on the strength of inapposite authorities,



          see, e.g., Den  Norske Bank AS v. First Nat'l  Bank of Boston, 75
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          F.3d 49 (1st Cir. 1996); Cofman v. Acton Corp., 958 F.2d 494 (1st
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          Cir. 1992),  appellant Brae Asset Fund,  L.P. ("Brae") asserts on



          appeal  that  the plain  literal import  of  the language  in the



          limited recourse  loan guaranty    drafted by  its predecessor in



          interest, Bank of New England, and executed by Weld's predecessor



          in interest,  E.  Denis  Walsh,  Inc.     should  be  disregarded



          because  the parties could not have intended that a loan guaranty



          be rendered  meaningless as  the district court's  interpretation



          essentially does.  Brae's argument fails.



                    Even assuming that the  guaranty language is ambiguous,



          Brae  did not generate a trialworthy issue of material fact, see,
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          e.g., Den  Norske Bank AS, 75  F.3d at 53, since  it proffered no
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          extrinsic evidence (e.g.  circumstances surrounding  negotiations



          or execution  of guaranty, "usage  of trade" evidence,  course of



          dealing) which might enable  a reasonable factfinder to determine



          that the  parties  meant  the limited  recourse  guaranty  to  be



          unlimited, as Brae urges.  See  id. at 55-59.  In fact, Brae  has
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          not  so much as intimated that any such extrinsic evidence exist-



          ed, nor  indicated, for example, whether  the original guarantor,



          E. Denis Walsh,  Inc., even  owned property which  it might  have





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          mortgaged to secure its loan guaranty.  Absent extrinsic evidence



          sufficient to generate  a material issue of  fact, its opposition



          to summary judgment was unavailing.  See id.
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                    Accordingly, the district  court judgment is  affirmed;
Accordingly, the district  court judgment is  affirmed;
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          costs to appellee.
costs to appellee.
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